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Enforcement of Fourteenth Amendment 


SPEECH 


OF 




HON. ALLEN G. THURMAN, 

OF OHIO, 

IN THE SENATE OF THE UNITED STATES, APRIL 13, 1871. 


, )> 


The Senate having under consideration the bill 
(H. R. No.320) to enforce the provisions of the four¬ 
teenth amendment to the Constitution of the United 
States, and for other purposes— 

Mr. THURMAN said: 

Mr. President: It is my purpose to con¬ 
sider this bill as it is, not to misrepresent it; 
not in a fault finding spirit to seek for matter 
to condemn, but, on the contrary, to look at 
the bill as a measure which has passed one 
House of Congress, which is recommended by 
a majority of the Committee on the Judiciary, 
and which has. been strongly supported by a 
large number of the members of the Senate; 
and therefore is, in every respect, entitled to 
careful and impartial consideration. Exam¬ 
ining it in this spirit, I propose to take it up 
section by section, because I am under some 
apprehension that the scope of the bill and the 
principles upon which it goes are not fully 
comprehended by every Senator. In doing 
this l shall have to beg Senators to be |<ind 
enough not to interrupt me, for in the state 
of my health this morning it will be difficult 
for me to speak at all, and unless I shall have 
the good fortune to command the uninterrupted 
attention of the Senate I shall have to give up 
the floor. 

Mr. President, in the remarks I shallsubmit 
on this bill I shall discuss it as it h® been 
amended by the Judiciary Committee of the 
Senate, and I now ask the Secretary to read 
the first section. 

The Chief Clerk read the first section, as 
follows: 

. That any person who, under color of any law, 
statute, ordinance, regulation, custom, or usage of 
any State, shall subject or cause to be subjected any 
person within the jurisdiction of the United States 
to the deprivation of any rights, privileges, or im¬ 
munities secured by the Constitution of the United 
States, shall, any such law, statute, ordinance, reg¬ 
ulation, custom, or usage of the State to the contrary 
notwithstanding, be liable to the party injured in any 
action at law, suit in equity, or other proper pro¬ 


ceeding for redress, such proceeding to be prose¬ 
cuted in the several district or circuit courts of the 
United States, with and subject to the same rights 
of appeal, review upon error, and other remedies 
provided in like cases in such courts, under the pro¬ 
visions of the act of 9th of April, 1866, entitled “ An 
act to protect all persons in the United States in 
their civil rights, and to furnish the means of their 
vindication,” and the other remedial laws of the 
United States which are in their nature applicable 
in such cases. 

Mr. THURMAN. This section relates 
wholly to civil suits. It creates no new cause of 
action. Its whole effect is to give to the Fed¬ 
eral Judiciary that which now does not belong 
to it —a jurisdiction that may be constitution¬ 
ally conferred upon it, 1 grant, but that has 
never yet been conferred upori it. It author¬ 
izes any person who is deprived of any right, 
privilege, or immunity secured to him by the 
Constitution of the United States, to bring an 
action against the wrong doer in the Federal 
courts, and that without any limit whatsoever 
as to the amount in controversy. The depri¬ 
vation may be of the slightest conceivable char¬ 
acter, the damages in the estimation of any 
sensible man may not be five dollars or even 
five cents; they may be what lawyers call 
merely nominal damages; and yet by this 
section jurisdiction of that civil action is given 
to the Federal courts instead of its being 
prosecuted as now in the courts of the States. 

1 am certainly not in favor of denying to 
any man who is deprived unlawfully of his 
right, his privilege, or his immunity, under the 
Constitution of the United States, that redress 
to which every man is entitled whose rights 
are violated ; but I do think that it is a most 
impolitic provision, that in effect may transfer 
the hearing of all such causes into the Federal • 
courts. 

My objections to this section are briefly 
these: 1 object to it, first, because of the cen¬ 
tralizing tendency of transferring all mere 
private suits, as well as the punishment of 











<A • ** 7 


offenses, iro^ the State into the Federal 
courts. I do not that, this section gives to 
the Federal courts ex«.ii ls i V e jurisdiction. I 
do not suppose that it is s*> understood. It 
leaves it, I presume, in the option t jie p er . 
son who imagines himself to be injurea sue 
in the State court or in the Federal court, an 
opt ion that he who has been the least injured, 
but who has some malice to gratify, will be 
the most likely to avail himself of. 

In the next place, 1 object to it because it 
is really, whatever may be said about it, a 
disparagement of the State courts. This bill 
embraces the whole United States; and to say 
that every man who may be injured, however 
slightly, in his rights, privileges, or immunities 
as a citizen of the United States can go to the 
Federal courts for redress is to say, in effect, 
that the judiciary of the States is not worthy 
of being trusted. I for one am unwilling to 
say that. I certainly am unwilling to say it in 
regard to my own State. Although the judges 
of the highest court in Ohio are all politically 
opposed to me, and although a large majority 
of the judges of the inferior courts are in the 
same manner opposed to me in political senti¬ 
ment, i stand here this day to affirm that they 
will give fair and impartial redress to any man 
whose rights under the Constitution have been 
violated by any one whomsoever. I am unwill¬ 
ing to say to the people of Ohio that the Con- 
gressofthe Uuited States thinks their judiciary 
so unsafe or so unworthy of trust that the peo¬ 
ple must seek for redress in the courts of the 
Uuited States. 

In the next place, I am opposed to this trans¬ 
fer of jurisdiction to the Federal courts because 
of the expense and the inconvenience that must 
attend it. In most of the States the Federal 
courts are held in not more than two places; 
there are very few in which they are held in 
as many as three places. Let an action be 
brought, therefore, in the Federal court, it 
may be but for five dollars, and the defendant 
may be dragged hundreds of miles, at great 
expense, to attend to the defense of the suit, 
and not he only, but also the witnesses who 
may be necessary to make out his defense. 

For these reasons it does seem to me that 
this grant of jurisdiction to the Federal courts 
to entertain these actions, without any limit 
whatsoever as to the amount in controversy, 
is impolitic and unwise. 

My next objection to the section is its vague¬ 
ness; and now I pray the* attention of the 
Senate to that. It provides— 

' That any person who, under color of any law, 
statute, ordinance, regulation, custom, or usage of 
any State, shall subject, or cause to be subjected, 
any person within the jurisdiction of the United 
Skates to the deprivation of any rights, privileges, 
or immunities secured by the Constitution of the 
United States, shall, any such law, statute, ordin¬ 
ance, regulation, custom, or usage of the State to 
the contrary notwithstanding, be liable to the party 
injured in an action at law. 

I “Any person” who is deprived “of any 
rights, privileges, or immunities secured by 


the Constitution of the United States.” What 
is meant by that? What are the rights, priv¬ 
ileges, and immunities that, in the opinion of 
your committee, are secured by the Constitu¬ 
tion of the United States? I take it that if 
that is to be left to judicial decisions, as it is 
here entirely, without any definition on our part, 
there bealmostas many different decisions 
as there are judges of t he Federal couns ; and 
it will be a long time. V 1( ffore the questions that 
would arise under this section would reach the 
Supreme Court of the Uuited Slates and there 
be definitely settled. 

Are Senators on this floor all of the same 
mind as to what are the rights, privileges, and 
immunities of citizens or of persons secured by 
the Constitution of the United States? What 
is the opinion of the elder Senator from Mas¬ 
sachusetts [Mr. Sumner] as shown by his sup¬ 
plementary civil rights bill, which he has pressed 
with so much earnestness upon the attention 
of the Senate? If I understand the scope of 
that bill, he holds it to be one of the rights, 
privileges, and immunities of a citizen of the 
United States that, without regard to color, he 
shall occupy in the hotels, in the public thea¬ 
ters, in the concert-rooms, in the churches, and 
in the schools of the country the most absolute 
social equality with everybody else ; and, there¬ 
fore, if any school directors should provide 
schools for the colored children separate from 
the whites and not allow them to mix together, 
that would be, in bis opinion, a deprivation of 
the right of the colored child. Jf any hotel- 
keeper should set apart a particular table for 
the colored people who should be hrs guests, 
instead of allowing them to sit at the table fre¬ 
quented by the whites, that, in the opinion of 
the Senator, would be an indignity offered to 
them, a violation of their rights, privileges, and 
immunities. If they are not allowed to mix 
with the guests of the Arlington at the first 
table of that hotel, or if they are not allowed 
to take their seats indiscriminately with the 
whites at the Academy of Music or the Opera 
House in New York, that, as he thinks, is 
a deprivation of their rights, privileges, and 
immunities as citizens of the United States. 

If he is right in all this—and there are other 
Senators here who concur with him—then 
every hotel-keeper, every steamboat man, 
every l#eper of a place ot public amusement, 
every school director, may be liable under this 
bill because he does not give to the colored 
people the absolute social equality of mixing 
indiscriminately with the whites at places of 
public amusement, or in the hotels, or on the 
steamboats, or in the schools. Every railroad 
company, if it sets apart a particular car fort 
colored people, though it may be as good a 
car as any in the train, is, upon this interpret¬ 
ation of the Constitution, liable to an action 
in the Federal courts under this bill, should it 
become a law. 

Now, it does seem to me that in view of 
these illustrations—and they are but a few out 











3 


of many that might be given—in view of the 
great question, what are the rights, privileges, 
and immunities secured by the Constitution of 
the United States? when we undertake to con¬ 
fer such a jurisdiction as this on the Federal 
courts we ought to define what rights, what 
privileges, what immunities, in our opinion, are 
thus secured and call for protection in those 
courts. 

But again, I have another objection to this 
section. Have Senators noticed how compre¬ 
hensive its language is? It refers to a depri¬ 
vation under color of law, either statute law 
or “customer usage” which has become com¬ 
mon law. It provides— 

That any person who. under color of any law. stat¬ 
ute, ordinance, regulation, custom, or usage of any 
State, shall subject, or cause to be subjected, any 
person within the jurisdiction of the United States 
to the deprivation of any rights, privileges, &c., 
shall be liable to an action. 

Now, I put it to the member of the commit¬ 
tee who has this bill in charge, does that include 
the legislators of a State ? And when he comes 
to address the Senate I hope he will tell us 
what his interpretation is. It is a deprivation 
under color of law, a deprivation which some 
one shall inflict or cause to be inflicted upon 
some othef; and now if the legislators of a 
State pass a law which, in the judgment of 
some person, deprives him of some right, 
privilege, or immunity, and a district judge 
of the United States should be of the same 
opinion, I put it to the Senator, where is the 
clause that exempts those legislators from the 
action that is provided in this section of the 
bill? I do not know what answer can be given 
to this. They pass the law, and they are there¬ 
fore the very persons who do cause the man 
to be deprived of what is held to be his priv¬ 
ilege. 

Suppose, for instance, the State of Ohio, as 
has usually been the case there, provides for 
schools for white children separate from schools 
for colored children ; for the State of Ohio has 
educated colored children almost ever since 
it had a school system, but in general has pro¬ 
vided for their schools being kept separate 
from the schools for the white children. If 
that is the deprivation of a right, privilege, or 
immunity, then by the terms of this bill, un¬ 
limited as they are, every legislator who votes 
for such a law is liable to be sued in a district 
court of the United States, and that although 
he voted for the law under the obligation of 
his oath to support the Constitution of the Uni¬ 
ted States, and in strict accordance with what 
he conscientiously believed to be the true 
meaning of that instrument. 

Let us go a little further. Let us apply it 
to ourselves. There is no law in this country 
that exempts members of Congress from re¬ 
sponsibility any more than members of State 
Legislatures. The Constitution provides that 
we shall not be liable to answer anywhere else 
for what we may say in debate upon this floor, 
but for our acts we are just as liable as mem¬ 


bers of State Legislatures, for they have the 
same exemption. Suppose a majority of Con¬ 
gress shall pass a bill which in the judgment 
of some district judge of the United States 
shall have the effect to deprive an individual 
of some right, privilege, or immunity secured 
to him by the Constitution of the United States. 
It may be said that that does not apply, be¬ 
cause the law that is here spoken of is the law 
of a State, but in principle it would apply, and 
if a legislator of a State ought to be sued be¬ 
cause he voted for a law which he conscien¬ 
tiously under his oath believed to be constitu¬ 
tional, you should carry out the principle and 
subject a Senator in Congress to exactly the 
same liability. Need I say that such a liabil¬ 
ity would be utterly destructive of the freedom 
of thought and action that are indispensable 
to the proper discharge of legislative duties? 

But let us go a little further. What is to be 
the case of a judge? The Legislature of a 
State passes a law. It goes before a judge of 
the State court for interpretation. Under the 
oath which he has taken to support the Con¬ 
stitution of the United States and the consti¬ 
tution of his State he conscientiously renders 
a decision which another man, a judge of the 
district court of the United States, may sup¬ 
pose deprives some person of a right, privilege, 
or immunity secured by the Constitution of 
the United States. Is that State judge to be 
taken from his bench? Is he to be liable in 
an action? Is the old maxim of the law, that 
a judge for any judgment he gives can only be 
liable to impeachment, to be reversed and that 
judge dragged into a Federal court to be 
mulcted in damages if the Federal judge, no 
wiser than he, under no higher obligation to 
obey the Constitution than he, shall be of a 
different opinion? 

Let it not be supposed that this is a fanciful 
case. There have been two or three instances 
already under the civil rights bill of State 
judges being taken into the United States dis¬ 
trict court, sometimes upon indictment for the 
offense, forsooth, of honestly and conscien¬ 
tiously deciding the law to be as they under¬ 
stood it to be. There is a judge now in the 
State of Virginia, if I am not misinformed, 
who is under recognizance to appear in a Fed¬ 
eral court to answer for the monstrous crime 
of having rendered a decision which the dis¬ 
trict attorney of the United States says is 
erroneous. There is a criminal indictment 
against him. And I believe the same thing 
has occurred in the State of Kentucky. 

Is it intended to perpetuate that? Is it 
intended to enlarge it? Is it intended to extend 
it so that no longer a judge sitting on the bench 
to decide causes can decide them free from 
any fear except that of impeachment, which 
never lies in the absence of corrupt motive? 
Is that to be extended, so that every judge of 
a State may be liable to be dragged before 
I some Federal judge to vindicate his opinion 
I and to be mulcted in damages if that Federal 











4 


judge shall think the opinion was erroneous ? 
That is the language of this bill. Whether it 
is the intent or not I know not, but it is the 
language of the bill; for there is no limitation 
whatsoever upon the terms that are employed, 
and they are as comprehensive as can be used. 
These are my objections to the first section. 

I come now to the second section. There 
is much in this second section that I not only 
believe to he constitutional, but that meets my 
approbation. There is much in it that I would 
be willing to see embodied in statute law. It 
is true that a great deal of it is already in your 
statutes, and therefore it is a bad example 
and useless to repeat it here; but if it should 
be deemed necessary to repeat it in the par¬ 
ticular form in which it is now proposed, there 
is much of it to which I would not object. 
There are provisions in it, however, to which I 
cannot consent; and without attempting to 
specify them all, for I do not wish to be tedious, 
1 will come at once to those to which I wish to 
call the particular attention of the Senate. 

In the first place, however, I wish to say that 
this section provides a code of criminal law, to 
a certain extent, and also confers a right to civil 
actions in the courts of the United States. The 
criminal part of the section is limited to the 
punishment of conspiracy. For instance, take 
the first clause of it: 

That if two or more persons within any State or 
Territory ol the United States shall conspire together 
to overthrow, or to put down, or to destroy by force, 
the Government of the United States, or to levy war 
against the United States, or to oppose by force the 
authority of tne Government of the United States, 
or by force, intimidation, or threat to prevent, hin¬ 
der, or delay th : execution of any law of the United 
Sta tes, or by .force to seize, take, or possess any prop¬ 
erty of the United States contrary to the authority 
thereof, or by force, intimidation, or threat to pre¬ 
vent any person from, accepting or holding any office 
or trust or place of confidence under the United 
States, or irorn discharging the duties thereof, or by 
force, intimidation, or threat to induce any officer 
of the United States to leave any State, district, or 
lace whejeliis duties as such officer might lawfully 
e per'ormed, &c. 

These are to be crimes. Most of them are 
already crimes, I believe. I think most of 
them are; but I do not doubt the power of 
Congress to pass such a law as that. Congress 
has powfcr to punish treason by the express 
terms of the Constitution, and 1 think it has 
the power to punish a conspiracy to commit 
treason, although there is no overt act. There 
can be no treason without an overt act, for the 
Constitution defines what treason shall be and 
requires an overt act. But I am willing to 
admit, at least that is my present impression, 
that it is competent for Congress to punish a 
conspiracy to commit treason ; and so it is 
competent for Congress to punish a conspiracy 
to deter or intimidate Federal officers from 
discharging t heir duties or to drive them out of 
their proper jurisdictions. All that may be 
necessary m order that the laws of the United 
States may he executed ; that is to say, the 
presence of the officers there and their free and 
unternfied discharge of their duties are essen¬ 


tial to the execution of the laws, and under 
the power which Congress has to pass all laws 
necessary for the execution of the powers con¬ 
ferred upon the Government or any depart¬ 
ment or officer thereof, it is competent for it 
to enact laws to punish a conspiracy that shall 
thus tend to prevent the officers from execut¬ 
ing the Federal laws. 

But there is ono provision here, to which the 
attention of the Senate lias already been called 
by the Senator from Illinois, [Mr. Trumbull,] 
to which I am opposed. It is the amendment 
proposed by the committee in the seventeenth 
line of the second section of the bill. As the 
bill came from the House that clause read 
“ or to injure him ”—that is, to conspire to in¬ 
jure an officer of the United States—“in his 
person or property, on account of his lawful 
discharge of the duties of his office. ,r That 
is all right enough ; but the Judiciary Com¬ 
mittee have amended the clause by inserting 
the words “or while engaged in the” lawful 
discharge of the duties of the office ; so that, 
as shown by the Senator from Illinois the other 
day, the lawful discharge of his duties may be 
here in the District of Columbia, but by the 
terms of this amendment, if there is a conspir¬ 
acy to commit a trespass on his property in 
the State of Kansas, which has no connection 
whatever with the lawful discharge of his 
duties, the object of which is not to prevent 
him from discharging his duties, the object 
of which is not to punish him for having dis¬ 
charged, his duties, which is wholly separate 
from any official action or conduct or position 
lie holds, that is a criminal offense. That 
strikes me as an amendment that the Senate 
ought to reject. 

Proceeding further with this section I come 
to the twenty-ninth line on page 3 of the bill: 

Or shall conspire together, or go in disguise upon 
the public highway or upon the premises of another 
for the purpose, either directly or indirectly, of de¬ 
priving any person or any class of persons ot the 
equal protection of the laws, or of equal privileges 
or immunities under the laws. 

Now, I have to observe in respect to that, 
that nothing could be more vague. 

Manifestly every lawyer in the Senate will 
agree that an indictment drawn in the words 
of this statute would not contain the requisite 
certainty, and would have to be quashed, for it 
would advise the party charged of nothing in 
the world with any such certainty as to enable 
him to make his defense. Therefore, every 
one will admit that in an indictment under 
such a section as that, after the words charg¬ 
ing that the parties did combine together or 
did go in disguise upon the public highway or 
premises of another, with one of the intents 
named here, that is, with intent to deprive some 
person or class of persons of the equal protec¬ 
tion of the laws, or to deprive them of equal 
privileges and immunities under the laws, the 
indictment would have to go on further and 
say “ in this, to wit, j; to deprive them of this 
thing or that thing or the other thing, which 










5 



is their privilege and immunity under the laws 
or which is necessary to their equal protection 
under the laws. 

Now, sir, I think it would be a great deal 
better for your learned Judiciary Committee 
of the Senate to find out what are these things 
which it considers the privileges and immunities 
of the citizen, or what it is that it considers is 
destructive of the equal protection of the laws, 
instead of leaving it to every ignorant district 
attorney—and you have plenty of them, some 
of them at least, who seem to have been 
appointed almost for the express reason, one 
would think, that they had no preconceived 
notions of the law, and you have some judges 
in the same category—leaving it to every dis¬ 
trict attorney to find out what, in his judgment, 
or to every ignorant grand jury, composed 
down South, perhaps two thirds of them, of 
negroes, who cannot read or write—to leave it 
to them to find out what thing it is which will 
deprive a man of the equal protection of the 
laws or of the rights and immunities that are 
secured by the Constitution. 

1 think that would be a curious thing. I 
should like, if I could find amusement in so 
serious a matter, to see some of the district 
attorneys that I could name puzzling over an 
indictment under that section and trying to 
find out what it is that constitutes the privi 
leges and immunities of citizens of the United 
States, or what it is that deprives a man of the 
equal protection of the laws, so that they could 
attribute that intent to the persons who thus 
combine together. For, mark it, Mr. Presi¬ 
dent, it is not necessary under this section that 
^ this combination should do any overt act; the 
combination is punished; it is the fact of com¬ 
bination that makes the offense; and it exists 
just as fully where they have done nothing as 
if they had carried out their purpose; and so 
it is in the case of going on the highway in 
disguise with the intent named, and it is there¬ 
fore a crime completed the moment they do go 
in disguise on the highway. 

The offense, then, being one that is complete 
without any overt act whatsoever, there is no 
such act to guide the pleader in drawing his 
indictment as to what was their intent, tie is 
left to imagine what that was, and to try and 
frame some intent to do something which would 
deprive a citizen of some privilege or some 
immunity secured to him by the Constitution, 
or which vvouid in some way, directly or indi¬ 
rectly, deprive him of the equal protection of 
the laws. And that power you give to a hun¬ 
dred or more district attorneys throughout the 
United States, and some of them so ignorant 
that we have been compelled to take them as 
make-shifts, because we could get nobody else. 
And the same may be said of some of the 
judges of the district courts. 

1 say, sir, that such vagueness and uncer¬ 
tainty in a code of criminal law are in the 
highest degree dangerous, and ought not to 
exist. On the one hand, they .make the law an 


instrument of intolerable wrong and oppres¬ 
sion, while, on the other, they open a wide door 
for the guilty to escape. When crime is not 
properly defined the people know not,what 
act is criminal or innocent, and the law is a 
pitfall for their feet. Resting in the uncer¬ 
tain opinions of judges, it is one thing in one 
place and another thing in another, and as 
this judge or that judge construes it the inno¬ 
cent suffer or the guilty escape. 

But, sir, to proceed. So far this section is 
launched at offenses against the United States, 
and in that it is right. So far, 1 say, unless 
indeed “ the equal protection of the laws,” or 
“ equal privileges and immunities under the 
laws,” is to apply to the laws of the State as 
well as those of the United States. If that is 
the true interpretation, then we are usurping 
a power that does not belong to us. For there 
is no power whatever in Congress to punish a 
conspiracy to obstruct the laws of a State. 

Mr. CARPENTER rose. 

Mr. THURMAN. I beg that my friend will 
not interrupt me. I think I will anticipate 
what he is going to say ; he is going to refer to 
the fourteenth amendment, 1 suppose, which 
says that certain persons are citizens of the 
State as well as of the United States, and that 
no State shall deny to any person within tos 
jurisdiction the equal protection of the laws. 

Mr. CARPENTER. I would rather state 
my point myself. 

Mr. THURMAN. I am very unwell to-dav, 
and I would rather my friend would reserve 
his point. 

The PRESIDING OFFICER, (Mr. Pome¬ 
roy in the chair.) The Senator from Ohio 
declines to be interrupted. 

Mr. THURMAN. At the proper time I will 
show that, that gives us no authority at, all to 
punish crimes against a State. If two or more 
individuals shall combine to prevent another 
individual from enjoying the equal protection 
of the laws, that is their individual act, that 
is no denial by the State of the equal protec¬ 
tion of the laws. Your fourteenth amendment 
says that, the State shall not deny the equal 
protection of the iaws ; but that, does not give 
you the right to punish three or more men 
who shall combine together to make a riot, or 
three men who shall combine toget her to whip 
another. That amendment does not apply to 
such a case as that; that is a case of mere 
individual violence, having no color whatsoever 
of authority of law, either Federal or State; 
and to say that you can puuish men for that 
mere conspiracy, which is their individual act, 
and which is a crime against the State laws 
themselves, punishable by the State laws, is 
simply to wipe out all the State jurisdiction 
over crimes and transfer it bodily to the Con¬ 
gress of the United States. Eo, sir; you find 
no authority in the fourteenth amendment to 
sanction any such doctrine as that. 

But, sir, what is meant by the word “ laws ” 
in this section so far as I have read it? An 













6 


intelligent court would decide that it meant 
the laws of the United States on the familiar 
principle that where there may be two inter¬ 
pretations given to an act, one of which will 
make it unconstitutional and the other of which 
will make it constitutional, the court is bound 
to give it the interpretation which makes it 
constitutional; or if an act may receive a lim¬ 
ited interpretation or an extended and com¬ 
prehensive interpretation, and the compre¬ 
hensive interpretation would make it include 
subjects over which the law-making power has 
no jurisdiction, then the limited interpretation 
will be given to it, no matter how broad the 
language may be. This is a familiar doctrine 
to every lawyer on this floor ; and therefore an 
intelligent court would construe this to mean 
“laws of the United States,” and not under¬ 
take to punish as an offense against the United 
States a combination of individuals to commit 
an offense which was merely against the laws 
of the State, and which received no sanction 
whatsoever from the State. 

But, sir, the next clause is more explicit: 

Or conspire for the purpose of preventing or hinder¬ 
ing the constituted authority of any State from giving 
or securing to all persons within such State the equal 
protection of the laws. 

Now, sir, I say that that is an interference 
with the rights of the States. Your fourteenth 
amendment says that no State shall deny to 
any person, whether a citizen or not, residing 
within its limits, the equal protection of the 
laws. That is all very true ; but that provis¬ 
ion is a limitation on the power of the State. 
It is in no sense an authority to Congress to 
usurp jurisdiction over offenses committed 
within a State against State law. If these 
combinations in a State to resist thb authority 
of the State, for that is it, “ hindering the con¬ 
stituted authorities of any State from giving 
or securing to all persons within such State 
the equal protection of the laws,” if these 
conspiracies are such that they amount to 
insurrection or to domestic violence, then the 
Constitution provides the remedy, and that is 
a call upon the General Government, under the 
guarantee clause of the Constitution, to afford 
protection to the State when the State is 
unable to protect itself. But this clause in 
this section of the bill goes upon no such 
ground as that. It does not require that 
the combination shall be one that the State 
cannot put down ; it does not require that it 
shall amount to anything like insurrection. If 
two persons combine for the purpose of pre¬ 
venting or hindering the constituted author¬ 
ities of any State from extending to all per¬ 
sons the equal protection of the laws, although 
those persons may be taken by the first sheriff 
who can catch them or the first constable, 
although every citizen in the county may be 
ready to aid as a,posse, yet this statute applies. 
It is no case of domestic violence, no case of 
insurrection, and no case, therefore, for the 
interference of the Federal Government, much 


less its interference where there is no call 
made upon it by the Governor or the Legis¬ 
lature of the State. 

And, mark it, the interference is to be in a 
case where the conspiracy is “for the purpose 
of preventing or hindering the constituted au¬ 
thorities of any State from giving or securing 
to all persons within such State the equal pro¬ 
tection of the laws.” The authorities of the 
State can only execute State laws. They can 
only give the protection afforded by the laws 
of the State. They are not the administrators 
of the Federal laws. They are not charged 
with giving to any individual the protection 
conferred by the Constitution of the United 
States, much less by the laws of Congress. 
That duty rests upon the Government of the 
United States, so that when the authorities of 
the State are spoken of here and it is made a 
crime to conspire to prevent them from “giv¬ 
ing or securing to all persons within such State 
the equal protection of the laws,” it is an 
attempt to punish individuals who conspire to 
prevent the protection of the State laws being 
extended to all persons; and that, I say, we 
have no power whatsoever to do. For that 
reason I cannot support this section. 

Again, the Judiciary Committee propose to 
insert as an amendment immediately after the 
clause I have just referred to, “or shall con¬ 
spire together for the purpose of in any man¬ 
ner impeding, hindering, obstructing, or de¬ 
feating the due course of justice in any State or 
Territory, with intent to deny to any citizen 
of the United States the due and equal pro¬ 
tection of the laws.” What 1 have said im 
regard to the vagueness of other parts of the 
section applies to this language. What “due 
course of justice” is it that these persons con¬ 
spire to hinder or to obstruct? Is it the due 
course of justice in the Federal courts? If it 
is, you have jurisdiction over the offense, al¬ 
though you ought to make your statute far more 
explicit than it will be if this bill become a law ; 
but the language is comprehensive enough to 
include the due course of justice of the States, 
the due course of justice of the State judiciary 
acting under the State constitution and the 
State law, and in no wise charged with the 
execution ofthelawsof the United States ; nay, 
more, they cannot be charged with their exe¬ 
cution, as was decided by the Supreme Court 
of the United States in the case of Prigg vs. 
The Commonwealth of Pennsylvania. 

Therefore, if this amendment be adopted, 
you undertake to vindicate by a penal law 
enacted by Congress the due administration of 
justice by a State court under the State con¬ 
stitution and the State law, with which the 
Government of the United States has nothing 
whatsoever to do. 

Again, “ with intent to deny to any citizen 
of the United States the due and equal protec¬ 
tion of the laws.” Why they have used the 
language “citizen of the United States” there 
I do not know, because the fourteenth amend- 











7 


ment says that no State shall deny to any resi¬ 
dent the due and equal protection of the laws. 
There again, however, is the vagueness of this 
clause. It seems to be a sort of common count, 
or a residuary devise or bequest at the end of 
this will to include everything that has not 
been put in before. My objection to it is that 
it is plainly unconstitutional, for it undertakes 
by the power of the Federal Government to 
punish crimes that are offenses against the 
State governments and against no other gov¬ 
ernment in the world, and it is so vague as to 
make it a trap for the innocent and the unwary. 

Now, Mr. President, I want to call your 
attention, without mentioning other defects in 
the definition of crime, to the penalties pro¬ 
vided by this section. The party convicted is 
subject to— 

A fine not less than $500 nor more than $5,000, or 
by imprisonment, with or without hard labor, as the 
court may determine, for a period of not less than 
six mouths nor more than six years, as the court 
may determine, or by both such fine and imprison¬ 
ment, as the court shall determine. 

The line must not be less than $500; it may 
be $5,000. The imprisonment must not be 
less than six months; it may be six years; or 
both tine and imprisonment may be imposed 
in the discretion of the court. Now, let us 
see what offenses there are here. If any per¬ 
sons “shall conspire together, or go in dis¬ 
guise upon the public highway or upon the 
premises of another for the purpose, either 
directly or indirectly, of depriving any person 
or any class of persons of the equal protection 
of the laws, or of equal privileges or immuni¬ 
ties under the laws.” if .they shall conspire 
together to deprive any persons of equal priv¬ 
ileges or immunities under the laws. That is 
intended, 1 suppose, taken in connection with 
what precedes it, to mean the equal privileges 
and immunities that are secured, it is said, by 
the Constitution of the United States; for that 
is a - law, and the highest law of the land, 
expressly declared in the instrument itself to 
be the supreme law of the land. 

Now, upon the interpretation of my friend 
from Massachusetts, in his supplementary civil 
rights bill, if the proprietors of the Arlington, 
for they are two, and therefore might com¬ 
bine, should make it a rule of their house that 
colored men and women should not intermix 
at the table with the white guests of that hotel, 
but should have a table to themselves, that, 
according to that interpretation of the rights 
and immunities of citizens, subjects the pro 
prietors to $500 fine at least, and to six months’ 
imprisonment at the least. So with all steam¬ 
boat officers, the owners or managers of every 
railroad, and of every place of public amuse¬ 
ment, where there are enough of them to com¬ 
bine, and it only takes two to combine. And 
so with the directors of your schools. 

Again, the right of which they may seek to 
deprive a person may bet the most trivial in the 
world. 1 have heard, and there is a good deal 


of testimony to that effect, that the pigs and 
chickens of men in the southern States are 
not quite as safe as they were in the*olden 
time; and that some of our American citizens 
of African descent are vehemently suspected 
of going, sometimes alone, sometimes in cou¬ 
ples, sometimes three, or four, or five together, 
and depleting a man’s hen-roost or his pig-pen 
in a manner extremely inconvenient to him 
and in a way that deprives him of his rights 
of property secured to him under the Consti¬ 
tution and laws of the United States by the 
plainest constitutional provisions, as it is said. 

I think Sambo and Pompey will consider 
themselves harshly treated if the Ku Klux, 
who, it is said, can have all the negroes con¬ 
victed who are guilty of crime, should get hold 
of a couple of these gentlemen of African 
descent and send them to jail for six months 
and fine them $500 each for the raid they 
make on the chicken-coop of some Ku Klux 
or the pig-pen of some member of the white 
fraternity; and yet is not that a combina¬ 
tion to deprive him of his rights of property? 
Is not the right to life, liberty, and property 
secured by the Constitution of the United 
States? Is not the security of property one 
of the rights and privileges of a white man as 
well as of a negro man? And if this enormous 
punishment is to be inflicted every time a 
couple of negroes shall rob a hen roost or a 
pig pen, and the Ku Klux are to give effect to 
the law, I warn Radical Senators to beware 
of the fate that may attend their friends. 

I might go on and state other cases were it 
necessary to do so, but I will mention but one 
more—a combination tocommitan assault and 
battery. Two little fellows agree to pummel 
a big man, because one cannot do it alone ; 
that is a violation of his right to protection, 
and for that little thing, which would be tried 
in a magistrate’s court in the State of New 
York or the State of Ohio and the parties fined 
ten dollars or thereabouts, the great punishment 
of this bill may be imposed. The offense is 
complete. It. is true the offenders have struck 
no blow, but they have combined to strike one. 
For that offense, which is punished under the 
laws of no State in this Union by more than 
a fine of ten, fifteen, or twenty dollars, or in 
an aggravated case by ^ little confinement for 
twenty or thirty days in the county jail, the 
Congress of the United States is asked to in¬ 
flict the punishment of six mouths’ imprison¬ 
ment at least and a fine of not less than $500. 

Mr. President, nothing is to be gained by 
such laws. They will be a dead letter. The 
very enormity of them will make them so. 
We have seen again and again how laws can¬ 
not be executed where public, opinion does not 
sanction them. In what State of this Union 
are the laws against the selling of spirituous 
liquors enforced? You have codes in many 
States punishing the retailing of such liquors, 
and yet it is only now and then, once in a year, 











8 


perhaps, in some special locality, that an in¬ 
dictment is found, and nine times out of ten 
it is never prosecuted to conviction. So it 
was with your fugitive slave law. That law 
was unpopular in a large portion of the Uni¬ 
ted States. Although it was decided by the 
Supreme Court of the United States to be con¬ 
stitutional, although it was upheld by such great 
names as that of Daniel Webster and others, 
although that law seemed to be a plain exer¬ 
cise of power by the Federal Government, and 
of one of the powers that were made almost 
a sine qua non by the slaveholding States to 
the adoption of the Constitution itself, yet who 
could have executed that law in the State of 
Vermout? 

It was executed once in the State of Massa¬ 
chusetts, but it took the military force of this 
Government to execute it, and I venture to 
say that in parts of my own State it could not 
have been executed at all. There was an 
attempt to execute it there once, and what was 
done? A mob seized the officers of the Uni¬ 
ted States, seized the deputy marshals of the 
United States who were in pursuit of the fugi¬ 
tive slave, and tied them to trees and whipped 
them worse than' any negro was ever whipped 
by the worst Ku Klux that ever lived; and not 
only were they whipped, but they were threat¬ 
ened with death if they did not leave that neigh¬ 
borhood, and leave it immediately, and they 
had to leave it. Although the^rioters were 
indicted for that act, and some few out of the 
great many who were engaged in that riot had 
sentences pronounced against them in the dis¬ 
trict court of the United States for the north¬ 
ern district of Ohio, the bare fact that that 
was done produced a meeting in Cleveland at 
which men subsequently members of Congress, 
at which the Governor of the State, and men 
of the highest political standing in all that por¬ 
tion of the State attended, and where it was 
boldly declared that if the supreme court of 
Ohio issued it3 writ of habeas corpus to deliver 
those men they should be delivered if it required 
all the armed force of Ohio to do it. 

On that occasion the Governor of the State 
said in effect that if the State court should 
issue its writ for the delivery of these men he 
would see to it that the mandate was obeyed 
if it required the military force of the State to 
do it. That was the state of feeling. Now, 
sir, there is not a more law-abiding State in 
the world than the State of Ohio, in my judg¬ 
ment. There is not a more law-abiding peo¬ 
ple than the people of Ohio. And yet in 
times of such great excitement as then existed, 
and upon that subject, the fugitive slave law 
was a dead letter, and thousands of slaves 
every year passed into or through the State 
of Ohio from the southern States. I may 
be wrong in saying thousands, but certainly 
hundreds every year passed through it with 
as much impunity and as much security as you 
or I could have traveled over it. And so, sir, 


when you make a law like this, a law of such 
monstrous pains and penalties, you will lind 
no public opinion tq back you in its enforce¬ 
ment. 

But again, Mr. President., all these offenses 
are to be taken intb the Federal courts; and 
now I ask my friend who champions the bill, 
cui bono ? What good is to come of it? It 
will not be pretended that the State judges of 
Vermont will not execute the law. 

Mr. EDMUNDS.^.-You do not wish me to 
answer now I suppose? 

Mr. THURMAN. No. It will not be pre¬ 
tended that the State judges of Ohio will not 
execute the law. What, then, is the necessity 
of takingallthese casesinto tbeFederal courts? 
I grant that as to those which are offenses 
against the United States they must be taken 
into the Federal courts; the State courts have 
no jurisdiction of them. For instance, to in¬ 
timidate a witness so as to prevent his attending 
upon a Federal court, to tamper with a juror 
in a Federal court, are offenses, not against 
the State, but offenses the jurisdiction of which 
must be given to the Federal courts; but, so 
far as the protection of person and property 
is concerned, where is the good to be derived 
from going into the Federal courts? What do 
we here? Even in the States down South, 
where it is said the Ku Klux are so strong, is 
it true that the judges will not discharge their 
duty? No man has said so. No man of the 
Republican party could say so without brand¬ 
ing members of his own party with infamy. 
Take the State of North Carolina. I am told 
that at least nine* tenths of the judges of that 
State are Republicans. 

Mr. BAYARD and Mr. BLAIR. All of them. 

Mr. THURMAN. All of them, my friends 
say. They are all Republicans, and so are 
most of the Commonwealth’s attorneys; the 
public prosecutors are Republicans; and three 
fourths or more of the sheriffs are Republicans. 
Now, is there any complaint that these judges 
will not execute the law ? Is there any com¬ 
plaint that these State attorneys will not exe¬ 
cute the law, will not set it in motion ? Noth¬ 
ing of that kind; but what is it that calls for 
these laws? Why this: we are told that grand 
juries of the State will not find indictments, or 
if indictments are found petit juries will not 
convict. But will not the same people who con¬ 
stitute the juries in the State courts be those 
that will constitute them in the Federal courts, 
unless you intend to go out of the State of 
North Carolina and get jurors from some other 
State, import them from Massachusetts, or 
Vermont, or Ohio, and take them down there 
to try the people, or unless you intend to trans¬ 
port the] offenders, as our forefathers were 
transported to Great Britain for trial, and 
which was one of the causes of our independ¬ 
ence? Unless you intend to do that, in.plain 
violation of the Constitution, what more suc¬ 
cessful machinery for the conviction of crime 













9 


will you have by giving the Federal courts this 
jurisdiction than you now have in the courts 
of the States ? 

My experience is exactly the opposite. My 
experience has been that convictions for crime 
take place in the State courts ten times where 
there is one conviction in the courts of the 
United States. The State courts act promptly, 
act vigorously, act understandingly, and the 
very neighborhood where crime is committed 
is interested in its suppression; the witnesses 
are close-by ; there is but little expense ; they 
are easily obtained, and, when obtained, con¬ 
victions of the guilty almost always follow. 
But if the witnesses are to be dragged two, 
three, or four hundred miles to attend a court 
for every offense that is committed, however 
trivial it may be, against the person, the prop 
erty, or the liberty of an individual, I tell 
you that for one conviction that you will obtain 
in the Federal courts you would have obtained 
ten if you had left the matter in the charge of 
the State courts. I consider it, therefore, an 
extremely impolitic measure as a means of 
repressing crime. 

In regard to the last clause of this section, 
which gives a civil action in the Federal courts 
for injuries done to individuals in their life, 
liberty, or property, I need only say that it is 
subject to the same observations that I have 
made before as to the impolicy of giving that 
forum that jurisdiction, instead of leaving it 
where it has been left with safety for so many 
years, in the hands of the State courts. 

But, Mr. President, the objections that I 
have mentioned to this bill, are really small 
compared to those which I have to the third 
and fourth sections.. It does seem to me that 
the first and second sections will perhaps in 
practice be a dead letter. There may be now 
and then son\e suits or prosecutions under 
them that will be vexatious and harassing, 
and very often perhaps they will be got up 
simply because they Will be vexatious and 
harassing and for purposes that are by no 
means justifiable; but, practically, I believe 
those two sections of the bill will be a dead 
letter; and I am the more justified in that 
when I recollect that you have already on your 
statute-book as comprehensive a code for the 
punishment of such outrages as the Ku Klux 
are said to commit as the wit of man could 
devise. The sixth section of the act of May, 
1870, covers every possible case of a combin¬ 
ation to deprive any person of any rights 
secured by the Constitution of the United 
States. You cannot make it broader. You 
may enumerate as much as you please; you 
may define as much as you please; but I defy 
you to find language more comprehensive than 
is found in that act. 

But that is not all. He will have looked but 
a little way who stops at that section. He must 
go further and look at the sections which fol¬ 
low it, four or five of them, and which provide 
the most comprehensive machinery that I have 


ever seen for the discovery and the punish¬ 
ment of offenders, which allow United Slates 
commissioners to be appointed everywhere and 
without limit as to number, which allow them 
to appoint deputy marshals without, limit as 
.to their number, so that they may have a per¬ 
fect army of them if they choose, and which 
also allow them to call upon the military force 
in order to enable them to execute their will. 

Mr. CONKLING. is not that the law now? 

Mr. THURMAN. That is what I am say¬ 
ing is the statute now. Although that law, 
which was introduced on the motion of the 
Senator from North Carolina, [Mr. Pool,] or 
taken frpm his bill, was passed and took effect 
in May last, nearly one year ago, yet we are 
given to understand that there has not been a 
conviction under it in all the South, or at most 
there has not been more than one or two. If 
that is the case, what do you expect by mak¬ 
ing more penal laws, heaping up penalty upon 
penalty, creating offense after offense, giving 
jurisdiction upon jurisdiction to the courts, 
and all with the result before you that laws 
just as strong and just as stringent have been 
fruitless to produce the peace and the order 
that all desire. 

I say again what I have said before, not in 
open Senate it is true, but what has impressed 
me from the very first time I saw this bill, that 
all of practical consequence there is in it is 
contained in the third and fourth sections ; that 
but for them the framers of the bill would 
drop it to-day. It is the power conferred upon 
the President of the United States by these 
sections, a power to make war upon his fellow- 
citizens, it is this clothing him with a power 
that but two monarchs in all Europe possess, 
the Czar of Russia and the Turkish Sultan, it 
is This delegation of power to him to make 
war at his own good will and pleasure upon 
any portion of the people of the United States 
on whom he chooses to make war, and to take 
from them the writ of habeas corpus , it is 
this, and this alone, which commends this bill 
to the support of its ardent friends. 

That being the case, let us look at what those 
sections are. I must do it briefly, for I have 
already spoken an hour, and I told the Senate 
that I did not expect to speak longer than 
that. I should like to speak longer if there 
were time to, do so and I had the strength to 
do it, but there are some things in regard to 
these sections that I must say. I wilt thank 
the Secretary to read the third and fourth 
sections of the bill. 

The Chief Clerk read the sections, as pro¬ 
posed to be amended, as follows: 

Sec. 3. Thatin all eases where insurrection, domes¬ 
tic violence, unlawful combinations, or conspiracies 
in any State shall deprive any portion or class of 
the people of such State of any of the rights, priv¬ 
ileges, or immunities, or protection, named in the 
Constitution, and secured by this act, or obstruct 
the equal and impartial course of justice, and the 
constituted authorities of such State shall either be 
unable to protect, or' shall, from any cause, fail in 
or refuse protection of the people in such rights* 










10 


such facts shall be deemed a denial by such State 
of the equal protection of the laws to which they 
are entitled under the Constitution of the United 
States; and in all such cases it shall be lawful for 
the President, and it shall be his duty, to take suqh 
measures, by the employment of the militia or the 
land and naval forces of the United States, or of 
either, or by other means, as he may deem necessary 
for the suppression of such insurrection, domestic 
violence, or combinations; and any person who 
shall be arrested under the provisions of this and 
the preceding section shall be delivered to the mar¬ 
shal of the proper district, to be dealt with according 
to law. 

Sec. 4. That whenever in any State or part of a 
State the unlawful combinations named in the pre¬ 
ceding section of this act shall be organized and 
armed, and so numerous and powerful as to be able, 
by violence, to either overthrow or set at defiance 
the constituted authorities of such State, and of the 
United States within such State, or when the con¬ 
stituted authorities are in complicity with, or shall 
connive at the unlawful purposes of, such powerful 
and armed combinations ; and whenever, by reason 
of either or all of the causes aforesaid, the convic¬ 
tion of such offenders and the preservation of the 
public safety shall become in such district imprac¬ 
ticable, in every such case such combinations shall 
be deemed a rebellion against the Government of 
the United States, and during the continuance of 
such rebellion, and within the limits of the district 
which shall be so under the sway thereof, such limits 
to be prescribed by proclamation, it shall be lawful 
for the President of the United States, when in his 
judgmeat the public safety shall require it, to sus¬ 
pend the privileges of the writ of habeas corpus, to 
the end that such rebellion maybe overthrown: 
Provided, That all the provisions of the second sec¬ 
tion of an act entitled “ An act relating to habeas 
corpus, and regulating judicial proceedings in cer¬ 
tain cases,” approved March 3, 1863, which relate to 
the discharge of prisoners other than prisoners of 
war, and to the penalty for refusing to obey the 
order of the court, shall be in full force so far as the 
same are applicableto the provisions of this section : 
Provided further. That thcPresident shall first have 
made proclamation, as now provided by law, com¬ 
manding such insurgents to disperse: And provided 
also, That the provisions of this section shall not be 
in force after the end of the next regular session of 
Congress. 

Mr. THURMAN. There are two cat^s in 
which the military power of the United States 
may be used within the United States and 
against citizens of the United States. The 
first is where the Constitution or laws of the 
United States are resisted. The second is 
where the constitution or laws of a State are 
resisted by insurrection or domestic violence, 
and that State, being unable to suppress the 
one or the other, through its Legislature, if in 
session, or the Executive, if the Legislature 
be not in session, calls upon the Government 
of the United States for aid. When I first 
began the reading of this third section I thought 
it was intended to be based upon that clause 
of the Constitution familiarly known as the 
guarantee clause, and which authorizes the 
interference of the General Government to put 
down insurrection or domestic violence in a 
State on the call of the State; but as I pro¬ 
ceeded with the reading I found that that could 
not be the case, because there is no provision 
in it that the Government of the United States 
shall be called upon for aid. Indeed, as it 
came from the House it was exactly the oppo¬ 
site, for it expressly provided lor a case in 
which the State should not call upon the Gen¬ 


eral Government for aid. That being so, I 
had to find some other provision of the Con¬ 
stitution upon which this section was framed, 
and I find that it is framed or intended to be 
framed upon the fourteenth article of the amend¬ 
ments. That fourteenth article, after declar¬ 
ing who shall be citizens, provides that— 

“No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive 
any person of life, liberty, or property without due 
process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws.” 

It is upon this last sentence, “.nor deny to 
any person wirhin its jurisdiction the equal pro¬ 
tection of the laws,” that this section of the bill 
appears to be framed, because after stating— 

That in all cases where insurrection, domestic vio¬ 
lence, unlawful combinations, or conspiracies in any 
State shall deprive any portion or class of the peo¬ 
ple of such State of any of the rights, privileges, or 
immunities, or protection, named in the Constitu¬ 
tion, and secured by this act, or obstruct the equal 
and impartial course of justice, and the constituted 
authorities of such State shall either be unable to 
protect, or shall, from any cause, fail in or refuse 
protection of the people in such rights— 

Now what? 

such facts shall be deemed a denial by such State of 
the equal protection of the laws to which they are 
entitled under the Constitution of the United States. 

This, then, is a case of dehnition. It under¬ 
takes to define what is a denial by a State of 
the equal protection of its laws to persons resi¬ 
dent therein; and it makes these cases which 
are here stated the denial of that equal pro¬ 
tection. I say it is a bad definition, a very bad 
definition indeed. What is it? Let me read 
it again : 

That in all cases where insurrection, domestic 
violence, unlawful combinations. See., deprive any 
portion or class of the people of such State of any 
of the rights, privileges, or immunities, or protec¬ 
tion, named in the Constitution, and secured by this 
act, or obstruct the equal and impartial course of 
justice, and the constituted authorities of such State 
shall either be unable to protect, or shall from any 
cause fail in or refuse protection of the people in 
such rights— 

that shall be deemed a denial by the State. 
If it is in any portion of the State and the 
constituted authorities shall be unable or shall 
fail to afford protection, that shall be deemed 
a denial and shall authorize the President of 
the United States to use the military for ce of 
the Government, aud, after a declaration of 
war in effect against those people, to use that 
m flitary power to put them down. 

Why, sir, that is the very case of domestic 
violence or insurrection provided for in the 
original Constitution, and in which the Gov¬ 
ernment of the United States is not to interfere 
unless called upon by the State, because the 
State is to have the first opportunity to put 
down the insurrection or violence itself. If it 
amounts to domestic violence, if the insurrec¬ 
tion or the combination makes sucli head as 
to become domestic violence or to become 
insurrection, and the State is unable to put it 
down, then it is that case which is provided for 













11 


in the original Constitution, and it was no part 
of the purpose of the fourteenth amendment to 
overthrow and blot out that provision in the 
original Constitution. 

What then is the true meaning of this clause ? 
And now 1 beg the attention of my legal friends 
especially to what I am going to say. No 
State is to “deny to any person within its juris¬ 
diction the equal protection of the laws.” 
That is a limitation on the power of the States. 
The provisions of the Constitution of the Uni¬ 
ted States are divisible into three classes. 
One class is a grant of powers to the Federal 
Government; the second class are limitations 
upon the powers of the Federal Government; 
and the third class are limitations upon the 
powers of the States. How are these pro¬ 
visions of the Constitution to be enforced? 
We have a provision in the original Consti¬ 
tution authorizing Congress “to make all 
laws which shall be necessary and proper for 
carrying into execution the foregoing powers,” 
that is, the ^powers vested in Congress, for 
that provision is found in the legislative article 
of the Constitution, “and all other powers 
vested by this Constitution in the Government 
of the United States, or in any department or 
officer thereof.” There is their power; and 
that would have been the power of the Gov¬ 
ernment if that article had not been in the 
Constitution at all, as is clearly shown in the 
Federalist and as was affirmed by the Supreme 
Court of the United States in McCulloch vs. 
Maryland. How is it that you make that 
article, where what would have been an implied 
power is expressed and so becomes an express 
power, cover the case of a violation of one of 
the limitations upon the power of a State? 
You do it under another provision of the Con 
stitution taken in connection with that or with 
several other provisions of the Constitution. 
To begin, there is the judicial power. The 
Constitution says that— 

“The judicial power shall extend to all cases, in 
law and equity, arising under this Constitution, the 
laws of tbo United States, and treaties made, or 
which shall be made, under their authority.” 

That being the case, there can be no ques¬ 
tion that can arise under the Constitution that 
may not be made the subject of judicial decis¬ 
ion. It is limited to cases, however. There 
must first be a case in the court, as the Su¬ 
preme Court has again and again decided ; but 
it is competent for Congress, under its power 
to enact necessary legislation, to provide for 
making the case in the court. Hence, if a 
State should coin money, which i3 contrary 
to the prohibition in the Constitution, it is 
competent for Congress to provide such legal 
machinery as shall make a esse, and bring the 
persons who coin that money before the Fed¬ 
eral judiciary. But -it does notauthorize Con¬ 
gress to say to the President, “You may go 
and take those fellows and hang them up by 
the neck under martial law,” because the ex¬ 
ecutive power does not extend to any such 


thing as that. It does authorize you to take 
those coiners, acting under State authority, 
into your Federal judiciary and there, by the 
terms of the Constitution, the judicial power 
extending to all questions arising under this 
Constitution, they may be dealt with according 
to law. 

So if any State should pass a law impairing 
the obligation of contracts, the .Constitution 
does not authorize you to send the President 
with the Army to put down the Legislature that 
passed the law, to make war upon it, to say 
that it is in complicity with the enemies of 
the United States and must be treated as a 
rebellion and put down; but it authorizes 
you to make a case for your judiciary, and 
then, under the broad powers of the judiciary 
of the United States extending to all cases 
arising under the Constitution, you have that 
case tried and determined and the law of the 
State declared to be void. 

And so, too, in regard to this limitation upon 
the power of the States that no State shall 
“ deny to any person within its jurisdiction the 
equal protection of the laws.” The language 
of the Constitution is that the State shall not 
do it; and what is jhe State? The State is a 
word used with several significations, it may 
sometimes be used, and frequently is used, in 
a geographical sense, to mean the territory. At 
other times it is used to describe the whole 
collective body of the people ; but in its polit¬ 
ical signification it is used in the sense in 
which it is here used, to signify the govern¬ 
ment of the State. It is not simply some 
judge sitting in Alamance county ; he is not 
the State of North Carolina; much less some 
constable or sheriff in Caswell county. The 
State of North Carolina, in this sense, is that 
political autonomy embodied in the govern¬ 
ment, and it is the denial by that government, 
and not by some individual, although he is 
clothed with a commission, that constitutes a 
denial by the State. 

Would it be said to be a denial by the United 
States of any right if some district judge in 
Kansas or Florida should make a decision that 
really infringed the rights of an individual? 
Would it be said, that the Government was 
guilty of a denial of right in that case, when 
that very man would, if his motive was cor¬ 
rupt, be impeached before this Senate and con¬ 
victed and turned out of office by this very 
Government ? 

When, therefore, it is said that no State 
shall deny the equal protection of the laws, 
the natural meaning of it is that no State shall 
make laws which deny equal protection to all 
the people who are residing in it, and that is the- 
only safe meaning to give it ;• because other¬ 
wise you would blot the States outof existence 
by the broad construction that has been con* 
tended for. 

We know something of the history of this 
clause. It was said by the Sen at' r from Illi- 
j nois, and truly said, that there were laws itt 







12 


some of the southern States during the exist¬ 
ence of slavery that a colored man, although 
a free man, unless he could give bond for his 
good behavior, should be sold into slavery ; 
and the laws became more severe than that. 
If a slave became a free man they required 
him to leave the State, and if he did not 
leave it within a given time he was liable to be 
reenslaved. Again, in some of the States 
negroes were not allowed to testify in courts 
of justice against white men, and that was 
thought to be a denial of the equal protection 
Of the laws. I do not decide that question, 
■whether it was so or not. The question, I be¬ 
lieve, has now traveled up to the Supreme 
Court of the United States, and I shall await 
its decision. But it was a denial by law of 
the equal protection of the laws that this clause 
was aimed at. 

Thus understood, all is plain sailing. If any 
State shall pass a law that denies the equal 
protection of its laws to all its people, you 
have the power to make a case for your Fed¬ 
eral courts which shall bring that law under 
review, and they will hold it to be unconstitu¬ 
tional and void, and everybody who undertakes 
to execute such an unconstitutional law will 
-be a trespasser and liable to punishment. 

That, then, is the great idea of the Consti¬ 
tution, that in respect to this class of provis¬ 
ions, which are limitations upon the powers of 
•the States, they are to be protected through 
the Federal judiciary. The idea that they were 
to be made a subject of war by the United 
States, much less that they were to authorize 
Congress to clothe the President of the United 
States with despotic power, as despotic as ever 
a Roman dictator was clothed with when he 
■was chosen and charged to see that the repub¬ 
lic took no detriment—such an idea as that 
was unknown to the framers of our Constitu¬ 
tion, and never was dreamed of by the people 
when they ratified the thirteenth, fourteenth, 
and fifteenth articles of amendment. It is a 
new idea entirely, without any warrant in his¬ 
tory and without any warrant in reason. 

You are to proceed through your courts. 
"But some one may say to me, “Suppose the 
court renders judgment and it is not obeyed.” 
Then comes another provision of the Con¬ 
stitution of the United States that authorizes 
you to interfere. The power of the court to 
render a judgment includes the power to see 
that it is executed. That isa part of the judicial 
power, and you have authority to pass all laws 
-necessary to the execution of the judgments 
■of the courts. You do it, and you have done 
it from the foundation of the Government. 
You have provide^ that they may be executed 
by the sale of property, real and personal, 
that they may be executed by various writs, 
sequestrations, attachments, and the like. If 
there is resistance to their execution, you hav¬ 
ing made a law for their execution, then the 
power is given to the President of the United 
States, and it is made his duty to see that the 


laws are executed. I do not think he can on 
his own mere motion determine upon what is 
the mode of execution. I think under that 
clause of the Constitution which requires him 
to see that the laws are executed, he must 
rely upon Congress for the means; but you 
may clothe him with all the means necessary 
to the execution of the judgments and decrees 
of your courts. But before you call in arms, 
before you say to law “ Be silent,” you must 
resort to the peaceable means of the law. 

That is the spirit of our Constitution. You 
overturn it wholly in the third and fourth sec¬ 
tions of this bill, and without going to a court, 
without beginning with the court, you begin 
with war, and then turn the subjects of your 
war over to the courts. You have begun at 
the wrong end. Instead of clothing the Presi¬ 
dent with this power, you should first have 
seen that the necessary laws be passed if they 
are not already on your statute-book, and if he 
needs power to execute the decrees of your 
court, give him that power, even if it shall 
require the exercise of military force. But to 
begin with him first, and make him the sole 
and only judge, as he is made by this bill, 
whether there is insurrection, whether there is 
domestic violence, whether there is combina¬ 
tion, whether the State fails to afford protec¬ 
tion to her people, and leave him wholly in the 
dark as to whether it is to be an opposition by 
ten men or a hundred men, whether it is to 
exist in one county or fifty counties, is simply 
to clothe him with as absolute power as any, 
monarch on this earth enjoys. That is the 
truth of it. The man never lived, not even 
the Father of his Country, to whom 1 would 
give such power ; but the idea of giving to the 
President, the incumbent of the office, and a 
candidate for reelection, this power under 
which he may trample every sacred right of 
Americans under foot and all the freedom of 
the ballot-box, if he sees fit to exercise it, with 
a great party at his back to sustain him, is 
simply the destruction of our institutions. 

Mr. President, it was well said by one of the 
finest thinkers of modern times that there is 
no despotism so much to be feared as the des¬ 
potism of a party in a country of free institu¬ 
tions. There is no despotism so much to be 
feared as power in the hands of the chief of a 
party in a country of popular institutions; and 
why so? If the Czar of Russia attempts to 
oppress his people, he has no army at his 
back except the organized army of the em¬ 
pire, and perhaps not even that. We all recol¬ 
lect the remark of Voltaire, that the Govern¬ 
ment of Russia was a despotism tempered by 
assassination. But when the chief of a great 
party in a Republic, at the head, perhaps, of 
a majority of the people, and backed by his 
party, and especially when backed by the legis¬ 
lative department as well, sees fit to exercise 
power without discretion, without judgment, 
without virtue, oppressively, wrongfully, injur¬ 
iously, in the interest of his party, that party 







13 


I 


by which he was placed in power and by which 
he is kept there, then 1 say that the des¬ 
potism of that man is the worst despotism on 
the lace of the earth, a worse despotism than 
that of any monarch. That is the power that 
you propose to put in the hands of your Pres¬ 
ident. That is the power with which you pro¬ 
pose to clothe him. 

You say these Ku Ivlux outrages are not 
simply violations of the rights of individuals 
by individuals, but that they have a political 
character; that the organization is in the inter¬ 
est of a political party; and you propose to 
give to the chief of the other political party 
the whole military power of the Government 
in order that he may make war on his political 
opponents. I say if you do that, no matter 
what General Grant’s titles to the esteem of 
the American people may be, you will have 
clothed him with a power which, if he is not 
more than mortal man, will shipwreck his 
fame, and with it, I fear, shipwreck the insti¬ 
tutions of the country. 

1 had intended to speak of the provisions 
of this section somewhat in detail. 1 intended 
to show how everything is left to his discre¬ 
tion. Let us see what he has a right to decide. 
“That in all cases where insurrection ”—he 
may decide whether there is an insurrec¬ 
tion or not. “ Domestic violence”—he may 
decide that. But there need be no insurrec¬ 
tion ; there need be no domestic violence. If 
there are “unlawful combinations . or con¬ 
spiracies in any State,” he is t^ decide that. 
But that is not all. He is to decide whether 
those combinations or conspiracies “deprive 
any portion or class of the people of such State 
of any of the rights, privileges, or immunities, 
or protection, named in the Constitution, and 
secured by this act.” He is again to decide 
whether they “obstruct the equal and impar¬ 
tial course of justice ;” and then he is to de¬ 
cide whether “the constituted authorities of 
such State shall either be unable to protect or 
shall, from any cause, fail in or refuse protec¬ 
tion”. His judgment is put above that of the 
authorities of the State. They may say, and 
say ever so truly, and ever so strongly, that 
they are able to protect the citizen, that they 
do not fail in giving protection. The Governor 
may say so, as the Governor of Mississippi does; 
the Legislature may say so; the courts may say 
so; the people of the State may say so ; and 
yet this one man’s will is placed above them 
all. He is the sole, supreme, and absolute 
judge of all these things, and upon his judg¬ 
ment depends the use of the whole military 
power of this Government against the people 
of the United States. If that is not absolute 
despotism, then I do not know what despot¬ 
ism means. If that is not the power to make 
war upon the people of the United States at 
the mere will and pleasure of the President 
for any purpose which he may have in view, 
then J do not know what the power to make 
war means. 


But, sir, it does not stop there. Next, we- 
have delegated to him what l maintain cannot 
be delegated to him : the power to suspend the 
writ of habeas corpus. That writ, which has 
been so much lauded, that writ of which we 
read when we were studying law in our schools,, 
that it was the pride of England, and which it 
is the boast of Blackstone had never been sus¬ 
pended in England from the time of iis enact¬ 
ment, in the days of Charles II, to the time he 
wrote ; that writ which secures liberty, which 
secure? life; that great writ which has now 
come to be of so little account, has come to be 
so little cherished in this country of free insti¬ 
tutions that you are willing to give to the 
President the discretion to suspend it at his 
will. 

I say if you had the power to do it it would 
be a monstrous thing to do it; but 1 deny that 
you have any such power. Upon this I shall 
not remark at great length, but only state a 
few propositions. 

In the first place, I say the power to suspend 
the writ of habeas corpus is a legislative power, 
not an executive power. It is a legislative 
power, because, first, the provision in regard 
to its suspension is found in the legislative 
article of the Constitution ; and for a much 
higher reason than that: it is nowhere con¬ 
ferred upon the President; and where this 
Government has a power that is not conferred 
upon either the executive department or the 
judicial department, in the very nature of 
things it must be a power conferred upon the 
legislative department. 

Mr. CARPENTER. I should like to ask 
my friend one question. 

The PRESIDING OFFICER, (Mr. Pome¬ 
roy in the chair.) Does the Senator from 
Ohio yield to the Senator from Wisconsin ? 

Mr. THURMAN. I believe I will, this time. 

Mr. CARPEN L’ER. I agree with him, that 
where any power is conferred upon the Govern¬ 
ment, generally, its execution calls for legis¬ 
lation on the part of Congress, and Congress, 
under the last clause of the legislative article, 
is authorized to pass all laws necessary and 
proper to carry into execution the powers con¬ 
ferred upon the Government. If the power is 
conferred upon the Government to suspend 
the writ of habeas corpus , and is not in the 
Constitution located in either of the depart¬ 
ments, I want to ask my friend what .is the 
objection to Congress legislating on that sub¬ 
ject, and providing that the President, in cer¬ 
tain events and contingencies to happen in the 
future, may suspend the writ ? 

Mr. THURMAN. I was coming to that. 
My friend by his question has only anticipated 
the line of my argument. The power to sus¬ 
pend the writ is a legislative power. It is a 
legislative power for the reasons 1 have stated, 
and'it has been so decided by the courts again 
and again. It is not given to the executive 
and it is not given to the judiciary, and there¬ 
fore from the very necessity of the case the 












14 


power must be a legislative power. But the 
writ was so much valued that we find in the 
Constitution this express provision: 

“The privilege of the writ of habeas corpus shall 
not bo suspended unless when in cases of rebeAion or 
invasion the public safety may require it.” 

Somebody, then, is to judge as to when it 
shall be suspended, to judge of the facts 
whether there is a case of rebellion or whether 
there is a case of invasion, and then, further, 
wheiher the public safety requires it. 

These are the grounds upon which the sus¬ 
pension may be ordered. The suspension can¬ 
not be made legally unless this foundation for 
it exists. There must be a rebellion, and the 
public safety must require its suspension, or 
there must be invasion and the public safety 
must require its suspension, otherwise it can¬ 
not be suspended. These foundations must 
exist to authorize whoever suspends it to act. 
If it is Congress that has the power to suspend 
it, Congress must judge of the existence of 
these grounds. You cannot delegate that 
power to anybody else. I know that once 
and but once, I believe, in the history of this 
country you did do so, in the midst of the late 
civil war ; but I need not say to the Senate that 
a great many acts were passed then that per¬ 
haps in after times can only be put upon the 
ground assumed by the Senator from Wiscon¬ 
sin [Mr. Carpenter] some-time since in the 
Senate—that in time of war every power in 
the Constitution except the war making power 
is in abeyance. I do not subscribe to that 
doctrine. That was the doctrine upon which 
he maintained the other day the lawfulness of 
acts which now in time of peace he declares to 
be plainly unconstitutional. But we are not 
in a state of war now, nor do I subscribe to 
that doctrine that war puts an end to all of the 
Constitution but the war-making power. 

This being the case, then, and this being a 
legislative power, can it be delegated? Surely 
I ought not to find it necessary to ask such a 
question as that, and much less to present the 
legal authorities; but I am required to do so, 
and upon this question I beg leave to read a 
few extracts, and for convenience, although I 
have the books here, I will read them from a 
speech of a respected colleague of mine in the 
other House. First, is this a legislative power? 
In the case of ex parte Bollman and Swart- 
wout Chief Justice Marshall said: 

“If at any time the public safety should require 
the suspension of the powers of this act in the 
courts of the United States”— 

That is, the habeas corpus act— 

“it is for the Legislature to say so. That question 
depends on political considerations, on which the 
Legislature is to decide. Until the legislative will 
bo expressed this court can only see its duty, and 
must obey the law.” 

Mr. Justice Story, in his Commentaries on 
the Constitution, remarks: 

“Hitherto no suspension of the writ has ever been 
authorized by Congress since the establishment of 


the Constitution. It would seem, as the power is 
given to Congress to suspend the writ of habeas cor¬ 
pus \n cases of rebellion or invasion, that the right 
to judge whether the exigency had arisen ”— 

Not shall arise— 

“ must exclusively belong to that body.” 

You are to decide upon the facts. You are 
not to provide for facts in the future and turn 
over the decision to somebody else, but the 
jurisdiction to decide whether the exigency 
has arisen is upon Congress. 

Mr. CONKLING. The exigency todo what? 

Mr. THURMAN. The exigency to suspend 
the writ, not to delegate to somebody else to 
judge whether the exigency has arisen, and 
not by prescribing what shall constitute the 
exigency and making somebody else the judge 
of it. 

Mr. CONKLING. If the Senator will par¬ 
don me, does not the authority that he reads 
say that it is for Congress to authorize the 
suspension—not to suspend, but to authorize 
the suspension? 

Mr. THURMAN. No, sir. 

Mr. CONKLING. Read again from Story, 
and see if he does not say so. 

Mj. THURMAN. “Hitherto no suspen¬ 
sion of the writ has ever been authorized by 
Congress since the establishment of the Con¬ 
stitution. ’ ’ 

Mr. CONKLTNG. That is the point. 

Mr. THURMAN. To be sure, “authorized 
by Congress.” But I will read on and read 
the whole: 

“ It would seem, as the power is given to Congress 
to suspend the writ of habeas corpus in cases of 
rebellion or invasion”— 

This argument is for the very purpose of 
showing that you cannot authorize anybody 
else to do it, and he gives the reason why there 
can be no such authorization— 

“It would seem, as the power is given to Congress 
to suspend the writ of habeas corpus in cases of re¬ 
bellion or invasion, that the right to judge whether 
tbe exigency had arisen must exclusively belong to 
that body.” 

That is given as a reason why there never 
has been any authorization of anybody else 
to suspend the writ. Then it is a legislative 
power. What said Chief Justice Marshall in 
the case of Wyman vs. Southard? 

“It will not be contended that Congress can del¬ 
egate to the courts, or to any other tribunals, powers 
which are strictly legislative.” 

Can we delegate to somebody else the power 
to make war? My friend from Vermont went 
to that extent yesterday, but I do not think 
after sleeping all night he will say so this 
morning. 

Mr. EDMUNDS. I did not sleep all night. 
[Laughter. ] 

Mr. THURMAN. 1 cannot believe he will 
say so this morning ; and although he has taken 
up a queer old act, a filibustering act, which 
was passed in secret, and which Congress was 
so much ashamed of that it did not make it 
public for a long time afterward, it will take 

















15 


more than one such instance to justify the 
argument, that Congress can delegate the power 
to the President of the United Slates to make 
war. , 

Some allusion was made in a colloquy be¬ 
tween the Senator from Delaware [Mr. Bay¬ 
ard] and the Senator from Vermont [Mr. 
Edmunds] to those laws that had been passed 
by Legislatures submitting questions to the 
people. The Senator from Vermont, in answer 
to the Senator from Delaware, asserted, as 1 
understood him, that the majority of the courts 
of the United States had sustained lawswhieh 
became effective upon the approbation of the 
people to' whom they were submitted for a 
popular vote. If that was what he intended 
to say 1 take issue with him upon it, and say 
that that is not the state of the law in this 
country ; but on the contrary, I do not think he 
can find such a case, although I will not assert 
that he cannot, because it is pretty hard to 
state anything so absurd that you cannot find 

some absurd judge who had ruled it- 

Mr. EDMUNDS. I have come to that con¬ 
clusion myself very lately. 

Mr. THURMAN. Yes, sir; that is so. 
Story need not have written his. Conflict of 
Laws if there had been no absurd judges in 
the world. But I do notthink the Senator will 
find a case that supports any such doctrine as 
that. Here is the distinction : where a Legis¬ 
lature has passed a law, and said that that law 
shall go into effect or not according to the vote 
of the people, that has always been held to be 
void, so far as I know. 

For instance, the State of Ohio passed a 
law, if my recollection is right, for t he prohibi- 
tion of the sale of spirituous liquors, and pro¬ 
vided that it should go into effect in such coun¬ 
ties as by a majority of their people voted that 
it should go into effect, and in the counties 
that voted against it it should have no effect 
and should be no law. That was held to be 
unconstitutional. But when the Legislature 
passes a law that clothes somebody with power 
to do an act upon receiving the approbation 
of the people, such a law has been sustained. 
Why? Because the act is done in pursuance 
of the law, and the approbation of the people 
is merely a contingency which happens, and 
which does not authorize them, the people, to 
make the law, but authorizes a particular act 
to be done. That is the case with nearly all 
the subscriptions to railroad companies that 
have been made under laws where the ques¬ 
tion of subscription was submitted to the peo¬ 
ple. The Legislature passes a law authoriz¬ 
ing a city, or county, or township to subscribe 
to the stock of a railroad company, but says 
to the municipal authorities, “ You shall not 
make that subscription until you submit the 
question whether you shall subscribe, and how 
much you shall subscribe, to the vote of the 
people; if a majority of them say subscribe 
this much, then you have the authority to do 
it; you may exercise that authority or you 


may not exercise it; but having their approba¬ 
tion, you may make the subscription.” The 
power to make the subscription is in the law. 

It is a good law; and the vote of the people 
is taken under that law. It is no delegation 
whatever of legislative power to the people, 
but simply their approbation, not of the law, 
but of the subscription. That is the distinc¬ 
tion ; those cases have been sustained. 

Mr. EDMUNDS. If my friend will pardon 
me, I will say that I did not cite that class of 
cases in support of my proposition. I admit 
they do not support it; that is merely the exer¬ 
cise of private power to exercise a private 
right. 1 cited the class of cases where crim¬ 
inal acts may or may not be done, as the peo¬ 
ple. when the question is left to them, shall 
decide that the law shall go into, force or shall 
not have force. 

Mr. THURMAN. I must say that Ido not 
read as many law reports as I formerly did. 

I made a calculation once and I found that a 
man would require about four thousand days 
in the year in order to be able to read all the 
law literature annually published in the Eng¬ 
lish language, and so I gave it up ; and I will 
not, as I said before, undertake to say what 
decisions may be found ; but l must say that 
if there are any such decisions, I most respect¬ 
fully beg leave to dissent. I might say, as 
Mr. Webster once said in the Supreme Court 
of the United States, that I have great respect 
for all decisions until reversed ; and I think 
if there is such a decision as the Senator sup¬ 
poses, it will be reversed should the question 
ever come up again. Let that pass ; it surely 
cannot be necessary here to argue that we 
cannot delegate this power. The only ques- 
t.icfn is, is this a delegation of the power? If 
I am right in saying that it is a legislative 
power, and that the Legislature must decide 
whether the contingency has happened, whether 
the grounds do exist, then 1 say you cannot 
delegate it. 

And this is to be perfectly distinguished ^ 
from cases where the President is authorized 
to issue a proclamation in verification of a 
fact. That is one of the familiar cases. The 
President was authorized while the embargo 
law was in force, if he was satisfied that any 
foreign Government had removed its restric¬ 
tions upon our commerce so as to allow free 
and uninterrupted trade with its people, to 
issue his proclamation that the embargo as to 
that people was at an end; but there was no 
question of discretion like this which is vested 
in this act; nothing of the kind. The Presi¬ 
dent’s issuing that proclamation was the mere 
verification of a fact. I do not care in what 
language it is clothed, it is the mere verifi¬ 
cation of the fact. No matter what the phrase¬ 
ology of the statute is, it is the act itself that 
provides for that contingency. 

But, again, there are other cases in which 
the happening of # the event is to be verified. 
There were cases during the war, where you 
















1C 


authorized Mr. Lincoln, by proclamation, to 
verily certain facts. When the war had 
ceased in certain insurrectionary States, if 
he found that it had, then you authorized him 
to issue his proclamation that the rebellion 
was at an end in those States, and then trade 
with them might be resumed. Then your act 
prohibiting trade would cease as to those States. 
That is all right enough ; there is no difficulty 
about that. There the President’s proclama¬ 
tion simply verifies the fact; that is all it 
does. 

This is a different case from that. You do 
not say in this bill that upon such and such a 
state of facts existing the writ of habeas cor¬ 
pus shall be suspended ; you do not say that 
it shall be suspended and submit to the Presi¬ 
dent simply the verification of the facts whether 
the case for its suspension exists. 1 deny that 
you have any right, to do that, because I deny 
that anybody but Congress has the right to 
judge whether or not the facts have occurred 
authorizing the suspension ; but if you did 
that, there might be somewhat more semblance 
of law in the provision ; but here you only 
authorize him to suspend it, so that the discre¬ 
tion to suspend the writ, which is a legislative 
discretion, you delegate to him. 1 do not be¬ 
lieve you have the power to do that; and if 
you had the power, I do not believe it would 
be wise to exercise it. 

Mr. President, I have occupied more of the 
time of the Senate than I ^expected to do; I 


have spoken nearly twice as long as I expected 
to speak but the importance of this subject, 
which we all admit, is such that I hope I shall 
be excused. I agree with the Senator from 
Illinois [Mr. Trumbull] in his opening re¬ 
marks the other day, that the question before 
us is really a question whether we will revolu¬ 
tionize our Government. Interpretations are 
given to the thirteenth, fourteenth, and fifteenth 
amendments, but especially to the fourteenth, 
which, if they become the settled interpreta¬ 
tion, blot out the State governments entirely. 
For all practical purposes they blot therti out; 
and we shall have, if those interpretations 
prevail, but one Government in the United 
States, and that the Federal Government, no 
longer a Federal Government, but a consol¬ 
idated, centralized Government. 

Mr. President, my own opinion is that one 
of the greatest sources of the prosperity and 
happiness of the American people has been 
the existence of the State governments; that 
one of the things indispensable to good legis¬ 
lation and the happiness of any people is that 
their legislation in that which concerns them 
immediately and does not concern other peo¬ 
ple shall be local. Strike out local legislation 
from your system, make it a system of consol¬ 
idated unity; strike out U E pluribus unum” 
from your flag, tear from it all its stars but 
one, and you will not only have destroyed the 
States,' but with them the liberties, the pros¬ 
perity, and the happiness of the people. 


Printed at the Congressional Globe Office. 





























































































